Karnataka High Court
Venkatesha vs Rangamma on 27 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 225 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.225 OF 2024 (PAR)
BETWEEN:
1. VENKATESHA
S/O LATE SANNEGOWDA
AGED ABOUT 63 YEARS
R/O CHIKKAKONDAGULA VILLAGE
KASABA HOBLI, HASSAN TALUK
HASSAN DISTRICT-573201.
...APPELLANT
(BY SRI. G.B.NANDISH GOWDA &
SRI. V.N.SHANKAREGOWDA, ADVOCATES)
AND:
1. RANGAMMA
Digitally signed W/O LATE SANNARAJU
by DEVIKA M AGED ABOUT 70 YEARS
Location: HIGH R/O CHIKKAKONDAGULA VILLAGE
COURT OF
KARNATAKA KASABA HOBLI, HASSAN TALUK
HASSAN DISTRICT-573201.
2. SHANTHAMMA
W/O LATE PUTTASWAMY
AGED ABOUT 66 YEARS
R/O CHIKKAKONDAGULA VILLAGE
KASABA HOBLI, HASSAN TALUK
HASSAN DISTRICT-573201.
SINCE DEAD BY LRS.
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RSA No. 225 of 2024
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2(a) SRI. PRAKASH C.P.,
S/O LATE PUTTASWAMY
AGED ABOUT 50 YEARS
2(a) SRI. DINESH C.P.,
S/O LATE PUTTASWAMY
AGED ABOUT 48 YEARS
2(c) NAVEEN C.P.,
S/O LATE PUTTASWAMY
AGED ABOUT 46 YEARS
RESPONDENTS NO.2(a) TO 2(c) ARE
R/AT CHIKKAKONDAGULA VILLAGE,
KASABA HOBLI, HASSAN TALUK,
HASSAN DISTRICT-573201.
(AMENDED VIDE ORDER DATED 27.06.2025)
3. NAGARAJU
S/O LATE SANNEGOWDA
AGED ABOUT 71 YEARS
R/O CHIKKAKONDAGULA VILLAGE
KASABA HOBLI, HASSAN TALUK
HASSAN DISTRICT-573201.
4. RAMEGOWDA
S/O LATE SANNEGOWDA
AGED ABOUT 69 YEARS
R/O CHIKKAKONDAGULA VILLAGE
KASABA HOBLI, HASSAN TALUK
HASSAN DISTRICT-573201.
5. C.S. HANUMEGOWDA
S/O LATE SANNEGODA
AGED ABOUT 61 YEARS
R/O SARASWATHIPURAM
HASSAN-573201.
6. PUTTALAKSHMI
W/O RANGEGOWDA
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AGED ABOUT 59 YEARS
R/O KANDALI VILLAGE
KASABA HOBLI
HASSAN DISTRICT-573201.
7. SUSHEELA
W/O LATE VENKATEGOWDA
AGED ABOUT 67 YEARS
R/O 6TH CROSS
ADARSHNAGAR
HASSAN-573201.
...RESPONDENTS
(BY SRI. K.S.GANESHA, ADVOCATE FOR R1 TO R5;
NOTICE TO R6 AND R7 SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.10.2023
PASSED IN R.A.NO.26/2021 ON THE FILE OF ADDITIONAL
SENIOR CIVIL JUDGE, HASSAN., DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 23.09.2021
PASSED IN O.S.NO.542/2012 ON THE FILE OF II ADDITIONAL
CIVIL JUDGE AND JMFC, HASSAN.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for consideration of I.As' and
those IAs' are allowed. The learned counsel appearing for
the appellant insisted this Court to hear the matter on
merits since the FDP is filed before the Trial Court and
date is fixed for the consideration tomorrow and hence this
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Court heard the matter on merits also regarding admission
of the second appeal.
2. The factual matrix of case of the plaintiff before
the Trial Court while seeking the relief of partition and
separate possession in respect of the schedule property in
O.S.No.542/2012 contended that one Sannegowda was
the propositus of the plaintiff and the defendants. The
plaintiff Nos.3 to 6 and defendants are the children of said
Sannegowda and plaintiff No.1 and plaintiff No.2 are the
wives of other two sons of Sannegowda who are no more,
the said Sannegowda had 8 children out of which six sons
and 2 daughters. The said Sannegowda died and his wife
Puttamma also died long back and the said Sannegowda
was a tenant in respect of suit schedule properties under
the landlord Sri.Krishnashetty and Smt.Jayalakshmama
and has filed the declaration claiming occupancy rights
under the provisions of Land Reforms Act and before grant
of occupancy rights, the said Sannegowda died and
plaintiffs and defendants being the legal heirs of the said
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Sannegowda are cultivating the suit schedule properties
and plaintiffs have authorized the defendants to appear
before the concerned authority and represent the case for
the sake of convenience. As such defendant No.1 on behalf
of his family appeared before the concerned authority and
the authorized officer and the Deputy Commissioner for
Tenancy claims by their order dated 21.09.2011 granted
the suit schedule land under Section 77 of the Land
Reform Act in the name of the first defendant.
3. It is also contented that properties were
granted in the name of the 1st defendant and the plaintiffs
and defendant No.2 have also got right over the suit
schedule properties as their father was tenant in respect of
the suit schedule property and filed declaration seeking
occupancy rights. Hence the plaintiff contend that they
have equal rights in the suit schedule properties. But, the
1st defendant with malafide intention got the katha
changed into his name in respect of suit schedule property
attempting to alienate the suit schedule property to the 3rd
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parties and when the demand was made for the partition
and separate possession of their share in respect of the
suit schedule properties by causing legal notice, he did not
come forward to give share and hence filed the suit. In
pursuance of the suit summons, defendant No.1 appeared
through his counsel and filed written statement and got
amended the written statement during the trial. The
defendant No. 1 has admitted the relationship between the
parties to the suit, but he contend that his father died on
15.09.1993 and prior to death of his father, his children
were separated and resided separately by taking their
share in the properties and their marriage was performed
prior to the death of his father. Hence the defendant No.1
has contended that plaintiffs have no right, title or interest
over suit schedule property. Further contended that
application seeking occupancy rights and after 6 to 7 years
from the date of death of his father on 08.01.1999, he
filed an application in respect of schedule properties
seeking occupancy rights on 21.09.2011, the concerned
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authority has granted the same in respect of the suit
schedule properties and hence he contended that it is his
self acquired properties and the plaintiffs have no right
over the suit schedule properties and also contended that
he invested more than Rs.20,00,000/- for the
development of the suit schedule properties and with an
intention to knock off the suit schedule properties from the
defendant No.1 that plaintiffs have filed the suit and
except the suit schedule properties, no other properties
and as per the orders passed by the Land Reforms Act and
other order passed by the Karnataka Land Tribunal,
Karnataka Appellate Tribunal, Bangalore, the defendant
became the absolute owner of the schedule properties and
hence he contended that they are not having any right.
The defendant No.2 also appeared and filed a written
statement contending that all the children of defendant
No.1 were separated prior to his death and the plaintiffs
have no right over the schedule properties. Further,
contended that there is no cause of action for the plaintiffs
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and also contend that sites, houses and lands stand in the
name of the plaintiffs associated at Chikkakondagola
village were not included in the present case and said
properties are also the properties of all the family
members. Hence, conviction tend that the suit is bad for
non joinder of necessary parties.
4. The Trial Court having considered the pleadings
of the parties that there was a partition between the
plaintiffs and the defendants as contended by defendant
No.1 and also the contention raised by the defendant
regarding self-acquired property, issue Nos.2 to 5 are
framed regarding non-inclusion of property and non-
joinder of necessary parties and the same are also taken
note of and allowed the parties to lead evidence. The Trial
Court comes to the conclusion that suit schedule
properties are the joint family properties of the plaintiffs
and defendants and also comes to the conclusion that
there was already a partition between the family and also
comes to the conclusion that there is a clear admission on
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the part of P.W.1 and D.W.1 that earlier there was a
partition in respect of the other properties, but in respect
of the property that is schedule property there was no any
partition and also taken note of the document of Ex.D.9
which was confronted by the counsel for defendant and
discussion was made that the document of Ex.D.8 will not
create any right in favour of the defendant and hence
granted the relief of partition in respect of the suit
schedule properties. The same is also challenged before
the First Appellate Court in R.A.No.26/2021. The Appellate
Court also having considered the grounds urged in the
appeal memo, formulated the point whether the Trial
Court was justified in holding that schedule properties are
joint family properties and also whether the Trial Court
was justified in holding that occupancy right has been
confirmed in the name of 1st defendant with respect to
schedule properties and on behalf of the joint family and
also whether the document Ex.D.8 is necessary to enable
this Court to pronounce the judgment in this appeal and
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all these points are formulated by the Appellate Court
having considered the grounds urged in the appeal memo
and First Appellate Court having re-assessed both oral and
documentary evidence placed on record answered the
point Nos.1 and 2 as affirmative that Trial Court
considering the material available on record comes to the
conclusion that property is amenable for partition and
answered the point No.3 as negative with regard to the
Ex.D.8 in coming to the conclusion that Ex.D.8 will not
confer any right in respect of the rights of the parties are
concerned in paragraph No.26 of the judgment while
answering the point No.3, detailed discussion was made
that the document Ex.D.8 nowhere helpful to the
appellants for deciding the appeal and confirmed the
judgment of the Trial Court.
5. Being aggrieved by the concurrent judgment of
both the Courts, present second appeal is filed before this
Court. The main contention of the counsel appearing for
the appellant would vehemently contend that both the
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Courts have committed an error in declining to accept the
case of the appellant that the same is a self acquired
property of the appellant. The counsel would submits that
Ex.D.8 is very clear that all of them have given consent in
respect of the property and also counsel would vehemently
contend that in pursuance of the grant made in favour of
defendant No.1, he cultivated the property and invested
the money and the same was also not taken note of by the
Trial Court as well as the First Appellate Court. The very
approach of both the Courts is erroneous.
6. The counsel also in his argument would
vehemently contend that both the Courts committed an
error in when the plaintiff P.W.1 made the admission that
there was an earlier partition between the family in the
year 2007 and ought not to have granted the relief and
also counsel would vehemently contend that Ex.D.8
consent letter executed by the respondents with respect to
the suit properties are concerned are ignored and hence
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on these two aspects this Court has to frame a substantive
question of law.
7. Per Contra, the counsel appearing for the
respondents would vehemently contend that the Trial
Court in detail taken note of both the documents of Ex.D.8
and comes to the conclusion that the same will not confer
any right to the parties in respect of the immovable
properties are concerned. The counsel would vehemently
contend that in paragraph No.26, the Trial Court taken
note of Section 24 of Right to tenant to be heritable:
where a tenant dies, the landlord shall be deemed to have
continued the tenancy to the heirs of such tenant on the
same terms and conditions on which such tenant was
holding at the time of his death. The counsel vehemently
contend that it is not in dispute that the tenancy rights
was claimed by the father and father subsequently passed
away and also a fresh application is given by the
defendant No.1 and the tenancy right is confirmed only in
favour of the family and not in favour of the defendant
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No.1 and all these aspects was taken note of by the Trial
Court.
8. The counsel also would vehemently contend
that that while answering the very contention of the
parties, taken note of regarding admission in paragraph
No.37, both P.W.1 and D.W.1 clearly admits that there
was already a partition and the same is in respect of the
other properties and not in respect of the suit schedule
property. When such reasoning is given by the Trial Court
and Appellate Court by considering both oral and
documentary evidence available on record, question of
framing any substantive question of law doesn't arise and
all the factual issue and also the right given to the parties
has been considered both on facts as well as question of
law by the Appellate Court. Hence, question of granting
substantive question of law in admitting and framing
substantive question of law doesn't arise.
9. Having heard the appellant's counsel and also
the counsel appearing for the respondents, it is not in
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dispute that father had filed a tenancy application in
respect of the suit schedule property and also it is not in
dispute that subsequent to the filing of an application
father died and thereafter defendant No.1 made an
application before the concerned authority claiming
tenancy right is also not in dispute and when the schedule
property is a tenanted property and also the admission
given by P.W.1 and D.W.1 is very clear that at the time of
earlier partition they have divided all the joint family
properties but no any division in respect of the suit
schedule properties and subsequently the grant is made in
favour of defendant No.1. The contention of defendant
No.1 that it is a self acquired property since grant was
made in his favour, but when the material clearly discloses
that father was a tenant and subsequently tenancy right
was conferred in favour of one of the family members and
the same was taken note of by the Trial Court particularly
in paragraph No.26 as well as the admission is also taken
note of in paragraph No.35 regarding earlier partition and
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though the Trial Court comes to the conclusion that there
was an earlier partition by answering issue No.2 taken
note of this property was not subject matter of earlier
partition and though contend that other properties are not
included but the fact is that earlier there was a partition
between the family members in respect of other family
properties were available, but in respect of this property is
concerned, subsequent right was granted that is tenancy
right was granted and hence, filed the suit. When such
being the material on record, the very contention of the
appellant's counsel cannot be accepted.
10. The other contention in respect of the document
Ex.D.8 also both the Courts have taken note of with
regard to the admissibility of document Ex.D.8 and the
same is marked as a consent letter and the document is
not a registered document and in terms of document
Ex.D.8, no question of any relinquishment of any right by
any of the parties and the same is also not admissible and
the same is discussed by both the Courts regarding the
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validity of the document also. When such material is
considered by both the Courts and the Appellate Court also
having considered the factual aspects as well as question
of law, I do not find any ground to admit and frame
substantive question of law on the admission of P.W.1 as
well as Ex.D.8 as contented by the appellant's counsel and
the same has been met by both the Courts and when such
being the case, I do not find any ground and no material
on record to admit and frame any substantive question of
law as contented by the appellant's counsel.
11. In view of the discussions made above, I pass
the following:
ORDER
Second Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
